City of San Antonio v. Joel Garcia, Individually and A/N/F of J.G. ( 2024 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CITY OF SAN ANTONIO, § No. 08-23-00329-CV
Appellant, § Appeal from the
v. § 166th Judicial District Court
JOEL GARCIA, Individually and § of Bexar County, Texas
as Next Friend of J.G.
Appellee. § (TC# 2022CI20560)
MEMORANDUM OPINION
Joel Garcia and his minor son sued the City of San Antonio alleging one of its police
officers negligently caused a vehicular collision. The City moved for summary judgment in a
hybrid motion that asserted multiple grounds for governmental immunity. The trial court denied
the motion and this interlocutory appeal followed. 1 The parties devote much of their briefing to
whether the City proved through its traditional motion for summary judgment that the police
officer enjoyed “official immunity” which in turn would protect the City. A recent case from the
Texas Supreme Court clarifies the standard governing that question. 2 But we resolve this appeal
on a narrower ground: the Garcias failed to respond to the no-evidence portion of City’s motion
1
This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code
Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our
own. See Tex. R. App. P. 41.3
2
City of Houston v. Sauls, No. 22-1074, 2024 WL 2096554, at *3 (Tex. May 10, 2024).
for summary judgment on two other exceptions to the waiver of immunity under the Texas Tort
Claims Act. Their arguments on appeal do not plug that hole. For that reason, we reverse and
render judgment for the City.
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts here are undisputed. On March 12, 2022 at 4:20 p.m. City of San Antonio
Police Officer Kevin Wilkinson was assigned to respond to a 9-1-1 call for a burglary in progress.
As Wilkinson travelled to the scene with his lights and siren activated, he went against a red light
at an intersection, and struck Garcia’s vehicle. Garcia, individually and on behalf of his minor
son, filed suit alleging that Officer Wilkinson was negligent and that the City liable for his
negligence. Garcia pled that the City’s immunity was waived under the Texas Tort Claims Act
and the trial court had jurisdiction because the claim arises from the use of a motor vehicle and
because Wilkinson acted with “conscious indifference and reckless disregard for the safety of
others.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021, 101.055(2).
The City answered and affirmatively raised governmental immunity, including that
afforded to it under § 101.062 (the 9-1-1 exception) and § 101.055 (the emergency response
exception) of the Texas Tort Claims Act. Almost a year after the suit was filed, the City filed a
no-evidence and a traditional motion for summary judgment asserting governmental immunity.
In support, it attached an affidavit by Officer Wilkinson in which he states that after receiving the
dispatch, he activated his lights and sirens. He states that the weather was clear and dry and he
“perceived no risk and certainly no extreme risk of proceeding through the intersection of
Callaghan Road and Commerce Street.” As he approached the intersection going southbound, he
“slowed [his] speed significantly, changed the tones of [his] sirens, and began blowing [his] police
vehicle’s airhorn . . . .” Vehicles stopped and moved aside for him, and he came to a rolling stop
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as he went through the intersection. When he was nearly through the intersection, Garcia,
traveling eastbound, drove through the intersection. Officer Wilkinson was unable to stop his
vehicle in time. A video from the dash camera, also submitted as summary judgment evidence,
corroborates Officer Wilkinson’s affidavit.
The court denied summary judgment and the City filed this interlocutory appeal. Tex. Civ.
Prac. And Rem. Code § 51.014(a)(8); Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)
(“If the trial court denies the governmental entity’s claim of no jurisdiction, whether it has been
asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the
Legislature has provided that an interlocutory appeal may be brought.”).
ANALYSIS
A. Immunity
“A city performing governmental functions may not be sued for its employees’ conduct
unless a plaintiff demonstrates the Legislature waived the city’s governmental immunity.” City
of Houston v. Sauls, No. 22-1074, 2024 WL 2096554, at *3 (Tex. May 10, 2024); City of El Paso
v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). Governmental functions include the activities of
police. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(1). The City is therefore immune from
this suit unless the Legislature has clearly and unambiguously waived that immunity. DeWitt v.
Harris Cnty., 904 S.W.2d 650, 652 (Tex. 1995).
The Texas Tort Claims Act (TTCA) waives immunity “in specific, narrow
circumstances.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). Relevant to
this case, a governmental agency’s immunity is waived for claims involving “property damage,
personal injury, or death [which] arise[] from the operation or use of a motor-driven vehicle”
when “the employee would be personally liable to the claimant according to Texas law.” Tex. Civ.
Prac. & Rem. Code Ann. § 101.021(1).
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The City argues it retains immunity for three reasons: official immunity of the officer; the
emergency exception, and the 9-1-1 exception. Before discussing the facts here, we outline the
immunity concepts at play.
(1) Official immunity
A City’s immunity is waived only if the governmental employee “would be personally
liable.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(B). Whether an employee can be held
liable turns on a different kind of immunity, official immunity. “If the employee is protected from
liability by official immunity, the employee is not personally liable to the claimant and the
government retains its sovereign immunity.” DeWitt, 904 S.W.2d at 653; see also K.D.F. v. Rex,
878 S.W.2d 589, 597 (Tex. 1994) (“Thus, Texas is vicariously liable for the acts of its employees
only to the extent its employees are not entitled to official immunity.”).
Police officers have official immunity when they “perform discretionary duties in good
faith while acting within the scope of their authority.” Sauls, 2024 WL 2096554, at *1. An officer
acts in good faith if “a reasonably prudent officer, under the same or similar circumstances, could
have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm
to the public in continuing the pursuit.” City of Lancaster v. Chambers, 883 S.W.2d 650, 656
(Tex. 1994); Sauls, 2024 WL 2096554, at *6.
(2) Emergency exception
Even in circumstances where the governmental employee does not have official
immunity, the Legislature recognized that the importance of immunity when a government
employee responds to an emergency. “Imposing liability for a mere failure in judgment could
deter emergency-assistance personnel from acting decisively and taking calculated risks in order
to save life or property.” City of Houston v. Frazier, No. 01-21-00318-CV, 2022 WL 1216181,
at *8 (Tex. App.—Houston [1st Dist.] Apr. 26, 2022, no pet.) (mem. op.) (citing City of Amarillo
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v. Martin, 971 S.W.2d 426, 429 (Tex. 1998). The TTCA therefore excepts from the general waiver
of immunity claims related to “the action of an employee while responding to an emergency call
or reacting to an emergency situation if the action is in compliance with the laws and ordinances
applicable to emergency action, or in the absence of such a law or ordinance, if the action is not
taken with conscious indifference or reckless disregard for the safety of others.” Tex. Civ. Prac.
& Rem. Code Ann. § 101.055(2). The underlying policy of the emergency exception is “‘to
balance the safety of the public with the need for prompt response’ from emergency-assistance
personnel.” City of San Antonio v. Trevino, No. 04-22-00224-CV, 2022 WL 17480550, at *3
(Tex. App.—San Antonio Dec. 7, 2022, no pet.) (mem.op.) (quoting Martin, 971 S.W.2d at 429).
Without immunity, lawsuits would “‘allow for judicial second guessing of the split-second and
time-pressured decisions’ emergency-assistance personnel are forced to make.” Trevino, 2022
WL 17480550, at *3 (citing City of San Angelo Fire Dep’t v. Hudson, 179 S.W.3d 695, 699 (Tex.
App.—Austin 2005, no pet.)).
Significant to this appeal, “[t]he plaintiff bears the burden of negating Section 101.055’s
applicability.” Maspero, 640 S.W.3d at 529, (citing City of San Antonio v. Hartman, 201 S.W.3d
667, 672 (Tex. 2006)); City of San Antonio v. Rosenbaum, No. 04-11-00498-CV, 2011 WL
6739583, at *2 (Tex. App.—San Antonio Dec. 21, 2011, no pet.) (mem. op.) (stating that once
the City raised the issue, the plaintiffs “would be required to present some evidence showing that
[the city actor] was not reacting to an emergency situation or responding to a 9–1–1 emergency
call.”).
(3) 9-1-1 exception
Similar to the emergency exception, the TTCA excepts from its waiver of immunity “an
action of an employee of [a] public agency . . . that involves providing 9-1-1 service or responding
to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the
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action.” Tex. Civ. Prac. & Rem. Code. Ann. § 101.062(b); Guillen v. City of San Antonio, 13
S.W.3d 428, 432 (Tex. App.—San Antonio 2000, pet. denied).
B. Summary judgment
(1) Burden of proof and standard of review
Both a traditional and a no-evidence motion for summary judgment can challenge
jurisdiction based on immunity. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550
(Tex. 2019). With a traditional motion for summary judgment, the movant has the burden to show
that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). With a no-evidence motion
for summary judgment, on the other hand, the burden is on the nonmovant to produce summary
judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i).The City
filed a hybrid motion for summary judgment. It sought a traditional summary judgment on all
three grounds for immunity and a no-evidence summary judgment on the emergency and 9-1-1
exceptions from the waiver of immunity. “If a party moves for summary judgment on both
traditional and no-evidence grounds, . . . we first consider the no-evidence motion.” Lightning Oil
Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
We review a no-evidence summary judgment for evidence that would enable reasonable
and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). “A no-evidence challenge will be sustained when (a) there is a complete absence
of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.”
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A fact issue exists if there is
more than a scintilla of probative evidence. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012).
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(2) No-evidence motion
The City’s no evidence motion for summary judgment challenged the absence of evidence
for each aspect of the emergency and 9-1-1 exceptions under the TTCA. 3 To avoid a no-evidence
summary judgment on the emergency exception, the Garcias had to show that a genuine issue of
material fact existed by presenting evidence of one of the following: “(1) [Wilkinson] was not
responding to an emergency call or reacting to an emergency situation, (2) [Wilkinson]’s actions
were not in compliance with the laws and ordinances applicable to emergency action, or (3)
[Wilkinson]’s actions show that he acted with conscious indifference or reckless disregard for the
safety of others.” Trevino, 2022 WL 17480550, at *3; Tex. Civ. Prac. & Rem. Code § 101.055(2).
The Garcias response to the City’s motion argued only that “a fact question exists in
determining whether Officer Wilkinson acted in good faith in undertaking his discretionary
duties.” Good faith is a factor in the official immunity analysis which was not at issue in the no-
evidence motion for summary judgment. The Garcias did not discuss the emergency or 9-1-1
exceptions, did not argue that they did not apply, and did not present evidence about the elements
of those exceptions. And although they attached the Texas Peace Officer’s Crash report, they did
not reference it as evidence for either immunity waiver exception. “When a summary judgment
respondent fails to direct the [ ] court to specific summary judgment evidence, a fact issue cannot
3
For the 9-1-1 exception under § 101.062, the City’s motion raised these challenges:
As a result, the City asserts that Plaintiff has no evidence that the exception of section 101.062 does
not apply because Plaintiff has no evidence that: (1) Officer Wilkinson was not providing 9-1-1
service or responding to a 9-1-1 emergency call at the time of the incident made the basis of this suit;
(2) Officer Wilkinson violated a statute or ordinance applicable to an emergency vehicle providing
9-1-1 service or responding to a 9-1-1 emergency call; (3) Officer Wilkinson acted with conscious
indifference or reckless disregard for the safety of others; (4) Officer Wilkinson committed an act he
knew or should have known posed an extreme degree of risk of serious injury; and (5) Officer
Wilkinson did not care about the consequences of his actions.
The City challenged the same elements for the § 101.055(2) emergency response exception.
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be raised sufficient to defeat summary judgment.” Leija v. Laredo Cmty. Coll., No 04-10-00140-
CV, 2011 WL 1499440, at *5 (Tex. App.—San Antonio Apr. 20, 2011, no pet.) (mem. op.).
When the movant in a no evidence motion for summary judgment properly challenges an
element of the nonmovants claim, the burden shifts to the nonmovant to present more than
scintilla of competent evidence raising an issue of material fact as to the elements of its cause of
action. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When the nonmovant
fails that task, “[t]he court must grant the motion.” Tex. R. Civ. P. 166a(i) Helena Chem. Co. v.
Cox, 664 S.W.3d 66, 72–73 (Tex. 2023), reh’g denied (May 5, 2023), cert. denied, 144 S. Ct. 199,
217 L. Ed. 2d 81 (2023); Bock v. State Farm Cnty. Mut. Ins. Co. of Tex., 675 S.W.3d 36, 41
(Tex. App.—San Antonio 2023, no pet.). Because the Garcias did not respond to the no-evidence
motion, the City was entitled to summary judgment.
Even on appeal, the Garcias’ brief on the merits only acknowledges that the City filed a
traditional motion for summary judgment and argues that the trial court properly denied the
Garcias’ traditional motion for summary judgment. Under that argument, they claim that the City
failed to meet its burden to prove the emergency exception. They make no specific argument that
the no-evidence motion was properly denied based on the Garcias presenting evidence to defeat
the exception.
We acknowledge, however, that the Garcias make an alternative argument in their brief
that even if the City met its initial burden to prove the emergency exception under the City’s
affirmative motion, the record contains proof of a genuine issue of material fact for whether
Officer Wilkinson acted recklessly. The evidence that they rely on for that argument could apply
with equal force to the no evidence part of the hybrid motion. Given our preference for resolving
disputes on the merits, rather than briefing waiver, we address the arguments the Garcias raise in
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response to the affirmative motion on the emergency and 9-1-1 exceptions that would equally
apply to the no-evidence motion on those same exceptions.
The Garcias’ response attached as summary evidence the Texas Peace Officer’s Crash
Report for this accident. 4 That report does not contradict the assertion that Officer Wilkinson was
responding to a 9-1-1 emergency call about the burglary of a vehicle and the Garcias admitted
that fact in their summary judgment response. See Holy Cross Church of God in Christ v. Wolf,
44 S.W.3d 562, 568 (Tex. 2001) (finding that statements in non-movant’s summary judgment
response were judicial admissions supporting summary judgment). Nor does the report provide
evidence that Officer Wilkinson violated a law or ordinance. The only violation apparent from
the summary judgment evidence is driving through a red light, but “Chapter 546 [of the
Transportation Code] generally authorizes operators of emergency vehicles to disregard traffic
laws, including traffic lights and speed limits, when responding to an emergency call.” City of
Houston v. Green, 672 S.W.3d 27, 30 n.3(Tex. 2023); Tex. Transp. Code §§ 546.001, .002. 5
The Garcias also needed to raise a genuine issue of material fact for reckless. The Texas
Supreme Court has recognized that the reckless standard in this context means more than just
engaging in risky behavior. Disregarding traffic laws while responding to an emergency
“involve[s] obvious risk of serious injury to bystanders” but so does allowing a suspect to escape
or a crime to occur because of a slow response. Maspero, 640 S.W.3d at 531–32. Thus, showing
4
The Garcias also attached their discovery disclosures. But a party cannot rely on his own discovery responses as
summary judgment evidence. Edifika Investments, LLC v. Chain & Chain Constr., LLC, No. 04-21-00568-CV, 2023
WL 3487027, at *5 (Tex. App.—San Antonio May 17, 2023, no pet.) (mem. op.). The trial court properly sustained
the City’s objection to this evidence.
5
On appeal, the Garcias argue for the first time that the 9-1-1 call was downgraded from a Code 3 to Code 2 call
after Office Wilkinson first responded to the call, but before the accident. Citing to a website that purports to have
City of San Antonio standards for how to respond to Class 2 calls, the Garcias claim Officer Wilkinson should have
come to a complete stop at the intersection. The standard that the Garcias point to was not presented below, and they
offer no basis for this Court to consider it for the first time on appeal.
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recklessness then means more than the fact that the officer engaged in risky behavior. A driver is
reckless only if he has a “willful or wanton disregard for the safety of persons or property.”
Tex. Transp. Code § 545.401(a); Maspero, 640 S.W.3d at 531. The evidence must show that the
officer knew all the facts and that there was a high risk to other drivers, but that he did not care.
Green, 672 S.W.3d at 30 (Tex. 2023); Hartman, 201 S.W.3d at 672 & n.19.
For recklessness, the Garcias point to the crash report. It states that because of stopped
vehicles, Officer Wilkinson and Garcias could not see each other. 6 That Wilkinson continued
through the intersection anyway, the Garcias contend, is some evidence that he was reckless. But
lack of visibility alone is not evidence of recklessness. As explained by the Houston, First District
Court of Appeals:
Whether the intersection is blind does not create a material fact issue here in
light of the undisputed testimony that Officer Matela had on his emergency
lights and siren and that he slowed before entering the intersection. Any
intersection that an officer attempts to traverse when responding to an
emergency is potentially a “blind intersection.” That is why the statute provides
that an emergency vehicle may proceed through a stop light after “slowing as
necessary.” See Tex. Transp. Code Ann. § 546.001(2).
City of Pasadena v. Kuhn, 260 S.W.3d 93, 100 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
Courts have found that obstructed visibility is evidence of recklessness only when it is combined
with a failure of the officer to take other precautions. Compare Green, 672 S.W.3d 27 at 31
(holding that the City was entitled to summary judgment because, even though the officer had an
obstructed view, there was no evidence to contradict that he slowed down before the intersection
and intermittently activated his sirens), and Tex. Dep’t of Pub. Safety v. Escobar, No. 13-20-
00267-CV, 2021 WL 6129135, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 29, 2021, pet.
6
This is not in dispute. Officer Wilkinson’s affidavit states, “I did not see the vehicle driven by Joel Garcia until I
was one lane away from being through the intersection.”
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denied) (mem. op.) (“Appellees cite no authority, and we find none, supporting the conclusion
that an emergency vehicle operator acts recklessly solely because his vision is obstructed, or he
fails to continuously operate his siren.”), and Harris Cnty. v. Spears, No. 14-17-00662-CV, 2018
WL 4571841, at *6 (Tex. App.—Houston [14th Dist.] Sept. 25, 2018, no pet.) (mem. op.) (“But
this evidence [of obscured visibility], when combined with the other evidence showing the
precautions Deputy Baskins took before entering the intersection, does not create an issue of fact
with respect to recklessness.”), with Tex. Dep’t of Pub. Safety v. Zakir, 665 S.W.3d 884, 893–94
(Tex. App.—Houston [14th Dist.] 2023, no pet.) (holding that there was evidence of recklessness
when the officer accelerated into an intersection with limited visibility before traffic had stopped
and after sounding the airhorn for only “a couple of blips”), and City of Killeen-Killeen Police
Dep’t v. Terry, No. 03-20-00071-CV, 2022 WL 221240, at *4 (Tex. App.—Austin Jan. 26, 2022,
pet. filed) (mem. op.) (holding that a fact issue existed because of the officer’s rate of speed
“coupled with” his obscured view and the fact that vehicles were continuing through the light),
and Perez v. Webb Cnty., 511 S.W.3d 233, 238 (Tex. App.—San Antonio 2015, pet. denied)
(holding evidence raised a fact issue when the officer accelerated through the intersection despite
having a blind spot). 7 The Garcias did not produce any evidence, as was their burden, that Officer
Wilkinson failed to take precautions due to his obstructed view. Because the Garcias did not raise
a genuine issue of material fact even considering the evidence attached to their response, the trial
court erred by denying summary judgment.
7
The Garcias cite to Rivera v. City of Houston for the proposition that “merely slowing down before entering an
intersection is not enough.” Rivera v. City of Houston, No. 01-19-00629-CV, 2022 WL 2163025 (Tex. App.—
Houston [1st Dist.] June 16, 2022, no pet.) (mem. op.). This is an oversimplification of Rivera. There, the court held
that even though the officer slowed down before entering the intersection, a fact issue about recklessness was raised
because of evidence that the officer did not know if she had a red light and was looking at her mobile data terminal
raised a fact issue about recklessness. Id. at *7. There was no such evidence in this case.
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Given our conclusion that the City was entitled to summary judgment based on its no-
evidence motion, we need not reach the issue of official immunity or whether the City met its
burden for traditional summary judgment. Green, 672 S.W.3d 27 at 30 n.2 (“Because we conclude
the emergency exception applies and prevents the waiver, we need not address the official-
immunity issue.”); Trevino, 2022 WL 17480550, at *11 n.1 (“Because Trevino did not negate one
of the three independent grounds on which the City moved for summary judgment (the emergency
exception), we need not address whether he negated the other two grounds (the 9-1-1 exception
and official immunity”).
CONCLUSION
Because the Garcias did not respond to the City’s motion for summary judgment with
evidence raising a genuine issue of material fact, we reverse the trial court’s denial of the City’s
motion for summary judgment and render judgment for the City.
JEFF ALLEY, Chief Justice
June 20, 2024
Before Alley, C.J., Palafox, and Soto, JJ.
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